Tuesday, October 11, 2005

Back to School: What Is This DeRolph and Where Did It Come From

Today we are going to begin our discussion of the DeRolph case. DeRolph is the case in which the Ohio Supreme Court evaluated the constitutionality of Ohio’s school funding system. If you have ever heard a public education advocate say “The Supreme Court has found the funding system unconstitutional four times!!!” that person is talking about DeRolph.

DeRolph still matters, but more as historical background than as a case with any ongoing legal relevance. The Plaintiffs won the case, but the actual changes that resulted were partial and fleeting.

Who were those Plaintiffs? Some anti-funding litigation conservatives, most notably Ohio Roundtable (to whom I refuse to link) say that DeRolph was simply a creature of liberals and trial attorneys. In fact, the lead plaintiffs were students, parents and school districts from predominantly poor rural schools in Allen, Lawrence and Perry Counties. Youngstown City was the lone urban school district that signed on.

Let's meditate on that irony for a moment. Allen, Lawrence and Perry counties are poor, rural and reliably red. Their state reps, aside from a narrow slice of Lawrence, are all Republicans. And Republicans have done their level best to hold school funding flat or cut it over the last two budget cycles.

Anyway, the DeRolph litigation formally began when it was filed in 1991, but in fact its roots stretch back farther than that. The DeRolf plaintiffs caught a second wave of litigation that started in the late seventies to early eighties. The first wave of plaintiffs tied their hopes to the Equal Protection Clause in the US Constitution. The Supreme Court ended that line of cases in Rodriguez v. San Antonio.

Education activists then focused on state constitutions. Unlike the US Constitution, state constitutions can often be quite chatty about what is expected from the state. In particular, state constitutions often confer positive as well as negative rights.

A negative right constrains the government from some sort of action against a citizen. A positive right compels the government to do something for a citizen. The US Constitution grants only negative rights.

A favorite rhetorical trick of conservative critics of liberal jurisprudence is to say “the constitution doesn’t say ‘x,’” as in the constitution doesn’t say you can marry someone of the same gender, it doesn’t say you can watch strippers, it doesn’t say police have to read Miranda warnings. When people follow this tack against school funding litigation, they not only fail to acknowledge how general constitutional rights are applied in specific cases, they conflate general understandings of US Constitutional rights – the general negative rights conferred by the Bill of Rights and other amendments – with the very specific positive rights conferred by state constitutions.

In Ohio the Constitutional guarantee is found in Article VI, § 2:

The general assembly shall make such provisions, by taxation, or otherwise, as,
with the income arising from the school trust fund, will secure a thorough and
efficient system of common schools throughout the state.

That sounds fairly straightforward. But as we will see next week, there is a wide gap between finding a right to education and determining where the metes and bounds of that right lie.

Next Week: DeRolph I, The Decision and the Dissent.


The Bricker and Eckler, the law firm that represented the E&A Coalition, has a complete trove of DeRolph documents.

ACCESS has a comprehensive overview of school funding litigation history, plus a state-by-state breakdown.

My little discussion about the redness of the home counties of the DeRolph plaintiffs was based on this district map and this list of reps.